on petition for writ of certiorari to the united
states court of appeals for the eighth circuit

No. 94-802. Decided May 15, 1995

Per Curiam.

Respondent was convicted of second degree robbery in
a Missouri court. During jury selection, he objected to
the prosecutor's use of peremptory challenges to strike
two black men from the jury panel, an objection arguably based on Batson v. Kentucky, 476 U.S. 79 (1986).
The prosecutor explained his strikes:

"I struck [juror] number twenty two because of his
long hair. He had long curly hair. He had the
longest hair of anybody on the panel by far. He
appeared to not be a good juror for that fact, the
fact that he had long hair hanging down shoulder
length, curly, unkempt hair. Also, he had a mustache and a goatee type beard. And juror number
twenty four also has a mustache and goatee type
beard. Those are the only two people on the jury
. . . with facial hair . . . . And I don't like the way
they looked, with the way the hair is cut, both of
them. And the mustaches and the beards look
suspicious to me." App. to pet. for Cert. A-41.

The prosecutor further explained that he feared that
juror number 24, who had had a sawed off shotgun
pointed at him during a supermarket robbery, would
believe that "to have a robbery you have to have a gun,
and there is no gun in this case." Ibid.

Respondent then filed a petition for habeas corpus
under 28 U.S.C. § 2254 asserting this and other
claims. Adopting the magistrate judge's report and
recommendation, the District Court concluded that the
Missouri courts' determination that there had been no
purposeful discrimination was a factual finding entitled
to a presumption of correctness under §2254(d). Since
the finding had support in the record, the District Court
denied respondent's claim.

The Court of Appeals for the Eighth Circuit reversed
and remanded with instructions to grant the writ of
habeas corpus. It said:

"[W]here the prosecution strikes a prospective juror
who is a member of the defendant's racial group,
solely on the basis of factors which are facially
irrelevant to the question of whether that person is
qualified to serve as a juror in the particular case,
the prosecution must at least articulate some
plausible race neutral reason for believing that those
factors will somehow affect the person's ability to
perform his or her duties as a juror. In the present
case, the prosecutor's comments, `I don't like the
way [he] look[s], with the way the hair is cut. . . .
And the mustache[] and the beard[] look suspicious
to me,' do not constitute such legitimate race neutral
reasons for striking juror 22." 25 F. 3d 679, 683
(1994).

It concluded that the "prosecution's explanation for
striking juror 22 . . . was pretextual," and that the state
trial court had "clearly erred" in finding that striking
juror number 22 had not been intentional discrimination. Id., at 684.

Under our Batson jurisprudence, once the opponent of
a peremptory challenge has made out a prima facie case
of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come
forward with a race neutral explanation (step 2). If a
race neutral explanation is tendered, the trial court must
then decide (step 3) whether the opponent of the strike
has proved purposeful racial discrimination. Hernandez
v. New York, 500 U.S. 352, 358-359 (1991) (plurality
opinion); id., at 375 (O'Connor, J., concurring in
judgment); Batson, supra, at 96-98. The second step of
this process does not demand an explanation that is
persuasive, or even plausible. "At this [second] step of
the inquiry, the issue is the facial validity of the
prosecutor's explanation. Unless a discriminatory intent
is inherent in the prosecutor's explanation, the reason
offered will be deemed race neutral." Hernandez, 500
U. S., at 360 (plurality opinion); id., at 374 (O'Connor,
J., concurring in judgment).

The Court of Appeals erred by combining Batson's
second and third steps into one, requiring that the
justification tendered at the second step be not just
neutral but also at least minimally persuasive, i.e., a "plausible" basis for believing that "the person's ability
to perform his or her duties as a juror" will be affected.
25 F. 3d, at 683. It is not until the third step that the
persuasiveness of the justification becomes relevant--the
step in which the trial court determines whether the
opponent of the strike has carried his burden of proving
purposeful discrimination. Batson, supra, at 98; Hernandez, supra, at 359 (plurality opinion). At that stage,
implausible or fantastic justifications may (and probably
will) be found to be pretexts for purposeful discrimination. But to say that a trial judge maychoosetodisbelieve a silly or superstitious reason at step 3 is
quite different from saying that a trial judge mustterminate the inquiry at step 2 when the race neutral
reason is silly or superstitious. The latter violates theprinciple that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from,
the opponent of the strike. Cf. St. Mary's Honor Center
v. Hicks, 509 U. S. ___, ___ (1993) (slip op., at 7-8).

The Court of Appeals appears to have seized on our
admonition in Batson that to rebut a prima facie case,
the proponent of a strike "must give a `clear and
reasonably specific' explanation of his `legitimate reasons'
for exercising the challenges," Batson, 476 U. S., at 98,
n. 20 (quoting Texas Dept. of Community Affairs v.
Burdine,450 U.S. 248, 258 (1981)), and that the reason
must be "related to the particular case to be tried," 476
U. S., at 98. See 25 F. 3d, at 682, 683. This warning
was meant to refute the notion that a prosecutor could
satisfy his burden of production by merely denying that
he had a discriminatory motive or by merely affirming
his good faith. What it means by a "legitimate reason"
is not a reason that makes sense, but a reason that does
not deny equal protection. See Hernandez, supra, at
359; cf. Burdine, supra, at 255 ("The explanation
provided must be legally sufficient to justify a judgment
for the defendant").

The prosecutor's proffered explanation in this
case--that he struck juror number 22 because he had
long, unkempt hair, a mustache, and a beard--is race neutral and satisfies the prosecution's step 2 burden of
articulating a nondiscriminatory reason for the strike. "The wearing of beards is not a characteristic that is
peculiar to any race." EEOC v. Greyhound Lines, Inc.
635 F. 2d 188, 190, n. 3 (CA3 1980). And neither is the
growing of long, unkempt hair. Thus, the inquiry
properly proceeded to step 3, where the state court
found that the prosecutor was not motivated by discriminatory intent.

In habeas proceedings in federal courts, the factual
findings of state courts are presumed to be correct, and
may be set aside, absent procedural error, only if they
are "not fairly supported by the record." 28 U.S.C. § 2254(d)(8). See Marshall v. Lonberger, 459 U.S. 422,432 (1983). Here the Court of Appeals did not conclude
or even attempt to conclude that the state court's
finding of no racial motive was not fairly supported by
the record. For its whole focus was upon the reasonableness of the asserted nonracial motive (which it
thought required by step 2) rather than the genuineness
of the motive. It gave no proper basis for overturning
the state court's finding of no racial motive, a finding
which turned primarily on an assessment of credibility,
see Batson, supra, at 98, n. 21. Cf. Marshall, supra, at
434.

Accordingly, respondent's motion for leave to proceed
in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Court of Appeals
is reversed, and the case is remanded for further
proceedings consistent with this opinion.

It is so ordered.

Justice Stevens , with whom Justice Breyer joins,
In my opinion it is unwise for the Court to announce
a law changing decision without first ordering full
briefing and argument on the merits of the case. The
Court does this today when it overrules a portion of our
opinion in Batson v. Kentucky, 476 U.S. 79 (1986).
[n.1]

InBatson, the Court held that the Equal Protection
Clause of the Fourteenth Amendment forbids a prosecutor to use peremptory challenges to exclude African
Americans from jury service because of their race. The
Court articulated a three step process for proving such
violations. First, a pattern of peremptory challenges of
black jurors may establish a prima facie case of discriminatory purpose. Second, the prosecutor may rebut that
prima face case by tendering a race neutral explanationfor the strikes. Third, the court must decide whether
that explanation is pretextual. Id., at 96-98. At the
second step of this inquiry, neither a mere denial of
improper motive nor an incredible explanation will
suffice to rebut the prima facie showing of discriminatory purpose. At a minimum, as the Court held in
Batson, the prosecutor "must articulate a neutral
explanation related to the particular case to be tried."
Id., at 98.
[n.2]

Today the Court holds that it did not mean what it
said in Batson. Moreover, the Court resolves a novel
procedural question without even recognizing its importance to the unusual facts of this case.

In the Missouri trial court, the judge rejected the
defendant's Batson objection to the prosecutor's peremptory challenges of two jurors, juror number 22 and juror
number 24, on the ground that the defendant had not
made out a prima facie case of discrimination. Accordingly, because the defendant had failed at the first step
of the Batson inquiry, the judge saw no need even to
confirm the defendant's assertion that jurors 22 and 24
were black;
[n.3]
nor did the judge require the prosecutor toexplain his challenges. The prosecutor nevertheless did
volunteer an explanation,
[n.4]
but the judge evaluated
neither its credibility nor its sufficiency.

The Missouri Court of Appeals affirmed, relying partly
on the ground that the use of one third of the prosecutor's peremptories to strike black veniremen did not
require an explanation, State v. Elem, 747 S. W. 2d 772,
774 (1988), and partly on the ground that if any
rebuttal was necessary then the volunteered "explanation
constituted a legitimate `hunch,' " id., at 775. The court
thus relied, alternatively, on steps one and two of the
Batson analysis without reaching the question whether
the prosecutor's explanation might have been pretextual
under step three.

The Federal District Court accepted a magistrate's
recommendation to deny petitioner's petition for habeas
corpus without conducting a hearing. The magistratehad reasoned that state court findings on the issue of
purposeful discrimination are entitled to deference. App.
to Pet. for Cert. A-27. Even though the trial court had
made no such findings, the magistrate treated the
statement by the Missouri Court of Appeals that the
prosecutor's reasons "constituted a legitimate `hunch' " as
a finding of fact that was supported by the record.[n.5]When the case reached the United States Court of
Appeals for the Eighth Circuit, the parties apparently
assumed that petitioner had satisfied the first step of
the Batson analysis.
[n.6]
The disputed issue in the Court
of Appeals was whether the trial judge's contrary finding
was academic because the prosecutor's volunteered
statement satisfied step two and had not been refuted in
step three.

The Court of Appeals agreed with the State that
excluding juror 24 was not error because the prosecutor's
concern about that juror's status as a former victim of
a robbery was related to the case at hand. 25 F. 3d
679, 681, 682 (1994). The court did, however, find a
Batson violation with respect to juror 22. In rejecting
the prosecutor's "race neutral" explanation for the strike,
the Court of Appeals faithfully applied the standard that
we articulated in Batson: The explanation was not " `related to the particular case to be tried.' " Id., at 683,
quoting 476 U. S., at 98 (emphasis in Court of Appeals
opinion).

Before applying the Batson test, the Court of Appeals
noted that its analysis was consistent with both the
Missouri Supreme Court's interpretation of Batson in
State v. Antwine, 743 S. W. 2d 51 (1987) (en banc), andthis Court's intervening opinion in Hernandez v. New
York, 500 U.S. 352 (1991). 25 F. 3d, at 683. Referring
to the second stage of the three step analysis, the
Antwine court had observed:

"We do not believe, however, that Batson is
satisfied by `neutral explanations' which are no more
than facially legitimate, reasonably specific and
clear. Were facially neutral explanations sufficient
without more, Batson would be meaningless. It
would take little effort for prosecutors who are of
such a mind to adopt rote `neutral explanations'
which bear facial legitimacy but conceal a discriminatory motive. We do not believe the Supreme
Court intended a charade when it announced
Batson." 743 S. W. 2d at 65.

In Hernandez, this Court rejected a Batson claim
stemming from a prosecutor's strikes of two Spanish speaking Latino jurors. The prosecutor explained that
he struck the jurors because he feared that they might
not accept an interpreter's English translation of trial
testimony given in Spanish. Because the prosecutor's
explanation was directly related to the particular case to
be tried, it satisfied the second prong of the Batson
standard. Moreover, as the Court of Appeals noted, 25
F. 3d, at 683, the plurality opinion in Hernandez
expressly observed that striking all venirepersons who
speak a given language, "without regard to the particular circumstances of the trial," might constitute a pretext
for racial discrimination. 500 U. S., at 371-372 (opinion
of Kennedy, J.).
[n.7]
Based on our precedent, the Court ofAppeals was entirely correct to conclude that the
peremptory strike of juror 22 violated Batson because
the reason given was unrelated to the circumstances of
the trial.
[n.8]

Today, without argument, the Court replaces the
Batson standard with the surprising announcement that
any neutral explanation, no matter how "implausible or
fantastic," ante, at 3, even if it is "silly or superstitious,"
ibid., is sufficient to rebut a prima facie case of discrimination. A trial court must accept that neutral explanation unless a separate "step three" inquiry leads to the
conclusion that the peremptory challenge was racially
motivated. The Court does not attempt to explain why
a statement that "the juror had a beard," or "the juror's
last name began with the letter `S' " should satisfy step
two, though a statement that "I had a hunch" should
not. See ante, at 4; Batson, 476 U. S., at 98. It is nottoo much to ask that a prosecutor's explanation for his
strikes be race neutral, reasonably specific, and trial
related. Nothing less will serve to rebut the inference
of race based discrimination that arises when the
defendant has made out a prima facie case. Cf. Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). That, in any event, is what we decided in
Batson.

The Court's peremptory disposition of this case
overlooks a tricky procedural problem. Ordinarily, a
federal appeals court reviewing a claim of Batson error
in a habeas corpus proceeding must evaluate, with
appropriate deference, the factual findings and legal
conclusions of the state trial court. But in this case, the
only finding the trial judge made was that the defendant
had failed to establish a prima facie case. Everyone
now agrees that finding was incorrect. The state trial
judge, holding that the defendant had failed at step one,
made no finding with respect to the sufficiency or
credibility of the prosecutor's explanation at step two.
The question, then, is whether the reviewing court
should (1) go on to decide the second step of the Batson
inquiry, (2) reverse and remand to the District Court for
further proceedings, or (3) grant the writ conditioned on
a proper step two and (if necessary) step three hearing
in the state trial court. This Court's opinion today
implicitly ratifies the Court of Appeals' decision to
evaluate on its own whether the prosecutor had satisfied
step two. I think that is the correct resolution of this
procedural question, but it deserves more consideration
than the Court has provided.

In many cases, a state trial court or a federal district
court will be in a better position to evaluate the facts
surrounding peremptory strikes than a federal appeals
court. But I would favor a rule giving the appeals court
discretion, based on the sufficiency of the record, to
evaluate a prosecutor's explanation of his strikes. Inthis case, I think review is justified because the prosecutor volunteered reasons for the challenges. The Court of
Appeals reasonably assumed that these were the same
reasons the prosecutor would have given had the trial
court required him to respond to the prima facie case.
The Court of Appeals, in its discretion, could thus
evaluate the explanations for their sufficiency. This
presents a pure legal question, and nothing is gained by
remand if the appeals court can resolve that question on
the facts before it.

Assuming the Court of Appeals did not err in reaching
step two, a new problem arises when that court (or, as
in today's case, this Court) conducts the step two inquiry
and decides that the prosecutor's explanation was
sufficient. Who may evaluate whether the prosecutor's
explanation was pretextual under step three of Batson?
Again, I think the question whether the Court of
Appeals decides, or whether it refers the question to a
trial court, should depend on the state of the record
before the Court of Appeals. Whatever procedure is
contemplated, however, I think even this Court would
acknowledge that some implausible, fantastic, and silly
explanations could be found to be pretextual without any
further evidence. Indeed, in Hernandez the Court
explained that a trial judge could find pretext based on
nothing more than a consistent policy of excluding all
Spanish speaking jurors if that characteristic was
entirely unrelated to the case to be tried. 500 U. S., at
371-372 (plurality opinion of Kennedy, J.). Parallel
reasoning would justify a finding of pretext based on a
policy of excusing jurors with beards if beards have
nothing to do with the pending case.

In some cases, conceivably the length and unkempt
character of a juror's hair and goatee type beard might
give rise to a concern that he is a nonconformist who
might not be a good juror. In this case, however, the
prosecutor did not identify any such concern. He merely
said he did not " `like the way [the juror] looked,' " that
the facial hair " `look[ed] suspicious.' " Ante, at 1. Ithink this explanation may well be pretextual as a
matter of law; it has nothing to do with the case at
hand, and it is just as evasive as "I had a hunch."
Unless a reviewing court may evaluate such explanations when a trial judge fails to find that a prima facie
case has been established, appellate or collateral review
of Batson claims will amount to nothing more than the
meaningless charade that the Missouri Supreme Court
correctly understood Batson to disfavor. Antwine, 743 S.
W. 2d, at 65.

In my opinion, preoccupation with the niceties of a
three step analysis should not foreclose meaningful
judicial review of prosecutorial explanations that are
entirely unrelated to the case to be tried. I would
adhere to the Batson rule that such an explanation does
not satisfy step two. Alternatively, I would hold that, in
the absence of an explicit trial court finding on the
issue, a reviewing court may hold that such an explanation is pretextual as a matter of law. The Court's
unnecessary tolerance of silly, fantastic, and implausible
explanations, together with its assumption that there is
a difference of constitutional magnitude between a
statement that "I had a hunch about this juror based on
his appearance," and "I challenged this juror because he
had a mustache," demeans the importance of the values
vindicated by our decision in Batson.

I respectfully dissent.

Notes

1
This is the second time this Term that the Court has misused its
summary reversal authority in this way. See Duncan v. Henry, 513
U. S. ___, ___ ___ (1995) (Stevens, J., dissenting).

2
We explained: "Nor may the prosecutor rebut the defendant's case
merely by denying that he had a discriminatory motive or `affirm[ing]
[his] good faith in making individual selections.' Alexander v. Louisiana,
405 U. S., at 632. If these general assertions were accepted as rebutting
a defendant's prima facie case, the Equal Protection Clause `would be but
a vain and illusory requirement.' Norris v. Alabama, [294 U.S. 587, 598
(1935)]. The prosecutor therefore must articulate a neutral explanation
related to the particular case to be tried. The trial court then will have
the duty to determine if the defendant has established purposeful
discrimination." Batson v. Kentucky, 476 U. S., at 97-98 (footnotes
omitted).

3
The following exchange took place between the defense attorney and
the trial judge:

"MR. GOULET: Mr. Larner stated that the reason he struck was
because of facial hair and long hair as prejudicial. Number twenty four,
Mr. William Hunt, was a victim in a robbery and he stated that he couldgive a fair and impartial hearing. To make this a proper record if the
Court would like to call up these two individuals to ask them if they are
black or will the Court take judicial notice that they are black individuals?

"THE COURT: I am not going to do that, no, sir." App. to Pet. for
Cert. A-42.

"I struck number twenty two because of his long hair. He had long
curly hair. He had the longest hair of anybody on the panel by far.
He appeared to me to not be a good juror for that fact, the fact that
he had long hair hanging down shoulder length, curly, unkempt
hair. Also, he had a mustache and a goatee type beard. And juror
number twenty four also has a mustache and a goatee type beard.
Those are the only two people on the jury, numbers twenty two and
twenty four with facial hair of any kind of all the men and, of
course, the women, those are the only two with the facial hair. And
I don't like the way they looked, with the way the hair is cut, both
of them. And the mustaches and the beards look suspicious to me.
And number twenty four had been in a robbery in a supermarket
with a sawed off shotgun pointed at his face, and I didn't want him
on the jury as this case does not involve a shotgun, and maybe he
would feel to have a robbery you have to have a gun, and there is
no gun in this case." App. to Pet. for Cert. A-41.

5
The magistrate stated: "The Court of Appeals determined that the
prosecutor's reasons for striking the men constituted a legitimate `hunch'
. . . . The record supports the Missouri Court of Appeals' finding of no
purposeful discrimination." App. to Pet. for Cert. A-27.

6
In this Court, at least, the State does not deny that the prosecutor's pattern of challenges established a prima facie case of
discrimination.

7
True, the plurality opinion in Hernandez stated that explanations
unrelated to the particular circumstances of the trial "may be found by
the trial judge to be a pretext for racial discrimination," 500 U. S., at
372, and thus it specifically referred to the third step in the Batson v.
Kentucky,476 U.S. 79 (1986), analysis. Nevertheless, if this comment
was intended to modify the Batson standard for determining the
sufficiency of the prosecutor's response to a prima facie case, it wascertainly an obtuse method of changing the law.

8
In my opinion, it is disrespectful to the conscientious judges on the
Court of Appeals who faithfully applied an unambiguous standard
articulated in one of our opinions to say that they appear "to have seized
on our admonition in Batson . . . that the reason must be `related to the
particular case to be tried,' 476 U. S., at 98." Ante, at 4. Of course, they "seized on" that point because we told them to. The Court of Appeals was
following Batson's clear mandate. To criticize those judges for doing
their jobs is singularly inappropriate.